Southern Ry. Co. v. Arnold

• Decision Date: 22 April 1909
• Citation: 50 So. 293,162 Ala. 570
• Parties: SOUTHERN RY. CO. v. ARNOLD.
• Court: Alabama Supreme Court

50 So. 293

162 Ala. 570

SOUTHERN RY. CO. v. ARNOLD.

Supreme Court of Alabama

April 22, 1909

Rehearing Denied June 30, 1909.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Alonzo K. Arnold against the Southern Railway Company and others. From a judgment for plaintiff, against the defendant named, the latter appeals. Affirmed.

Weatherly & Stokely, for appellant.

Bowman Harsh & Beddow, for appellee.

DOWDELL C.J.

The suit was brought against the appellant, Southern Railway Company, and two others, the Sloss-Sheffield Steel & Iron Company and John McDougal. A verdict was returned against the former, the Southern Railway Company, and in favor of the two latter. A judgment was entered on this verdict, and from this judgment the Southern Railway Company appealed.

The action is in tort, and the complaint contained but one count. The damages claimed are for injuries which the plaintiff received because of the alleged wrong of the defendants. After stating the manner in which the plaintiff was injured and that it was at a time and place when and where the plaintiff had a right to be and was in the discharge of his duty, it is averred that the injury was the proximate consequence of the negligence of the defendants. The facts stated are sufficiently definite and certain out of which to raise a duty on the part of the defendants not to place, or cause to be placed, the car which injured plaintiff so near the track over which plaintiff in the discharge of his duties had to pass as to injure him. It may be stated to be a sound rule of law that every man owes his fellow man the general duty not to negligently injure him. Certainly, if one negligently places a car so near a track over which cars are being rightfully operated by another as to injure such other person, or his servant, while in the discharge of his duty to his master in operating cars over said track, he should be held responsible for the injury proximately caused by his negligence. So, too, the averment as to the negligence is sufficient. It has been repeatedly ruled by this court that where the facts stated are sufficient out of which to raise a duty, a very general averment of negligence is enough. The complaint was unobjectionable on demurrer. L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620. Many other of our cases might be cited to the same effect, but it is unnecessary to do so.

The appellant filed a petition for the removal of the cause to the federal court, alleging its nonresident citizenship, and as grounds of said removal it is alleged in said petition, first, that the cause of action is separable; and, secondly, that the defendant McDougal was fraudulently joined as a defendant for the purpose of preventing a removal of the case into the federal court. The first ground, that the cause of action is separable, must be determined from the pleading--the complaint--and not by the allegations in the petition. On this question the averments of the complaint are to be taken as confessed. The complaint in terms alleges that the defendants, meaning, of course, all of them, negligently caused the car that injured plaintiff to be or remain where it was. The "causing of the car to be or remain" where it was describes a simple act, and the complaint avers it as the joint act of all. Negligence is likewise charged jointly. How the alleged wrong was concurred in by all of the defendants is of no consequence, if as a fact it was a joint act of all; and this, in substance, the complaint charges. It cannot be affirmed as matter of law on the face of the pleading that it was impossible for all of the defendants to have participated in the single act charged (the causing of the car to be or remain on the track) in a manner to have constituted it in law the joint act of all, and carrying with it a joint and several liability. The case of Alabama Southern Ry. v. Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441, in which the question we here have under consideration is fully discussed, seems to answer the contention of the appellant on the subject and adversely to its contention.

The case of R. & D. R. R. Co. v. Greenwood, 99 Ala. 501, 14 So. 495, cited and relied on by counsel for appellant, presents a different state of facts, both on the pleadings and the evidence, from the case at bar. In that case there was a collision on the crossing of the two roads between trains operated by the respective defendants. The complaint showed that the servants of the respective defendants operating their respective trains acted independently each of the other, and were guilty of separate acts of negligence in bringing on the collision. The two acts were, it is true, in a sense coincident, but were none the less separate and independent of each other, without any suggestion of community; that is to say, without the one concurring or participating in the negligent act of the other. In the case before us but one single act is complained of, viz., causing a car to be or remain too near the track on which the plaintiff had to pass; and, as stated before, the complaint charges joint negligence in producing this condition. Neither of the other cases cited (Powell v. Thompson, 80 Ala. 54; Larkins v. Eckwurzel, 42 Ala. 322, 94 Am. Dec. 651; Ensley Lumber Co. v. Lewis, 121 Ala. 99, 25 So. 729) is opposed in principle to what we have said. The petition for removal was renewed at different stages of the trial; and upon conclusion of the testimony it was again presented to the court on the whole record and the evidence in the case. The only evidence in the case was that introduced by the plaintiff; neither of the defendants offering any.

It is insisted by counsel for appellant that upon a consideration of the entire record, together...